CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3877
Heard in
concerning
CANADIAN NATIONAL RAILWAY COMPANY
and
TEAMSTERS
DISPUTE:
Assessment
of twenty (20) demerits to Conductor P. Mousir of
COMPANY’S STATEMENT OF ISSUE:
On
Through the investigation process, the Company determined that the grievor was in violation of General Operating Instruction section 8.12.7 and assessed twenty (20) demerits.
The
The Company
disagrees with the
FOR THE COMPANY:
(SGD.) P. PAYNE
FOR: DIRECTOR, HUMAN RESOURCES
There appeared on behalf of the Company:
P. Payne –
Manager, Labour Relations,
K. Morris –
Sr. Manager, Labour Relations,
D. Crossan – Manager, Labour Relations, Prince George
C. Mitchell –
Trainmaster,
C. Tytgat –
Trainmaster,
There appeared on behalf of the
M. A. Church –
Counsel,
B. Boechler –
General Chairman,
R. A. Hackl –
Vice-General Chairman,
G. Mensaghi – Local
Chairman,
H. Richardson – Former Local
Chairman,
P. Mousir –
Grievor
AWARD OF THE ARBITRATOR
It is not disputed that the grievor was observed handling two high-mast switches, lining both of them with the use of only one hand. It is not disputed that his actions were contrary to the Company’s Safety Rules GOI Section 8.12.7. It also does not appear disputed that Mr. Mousir had previously suffered eleven work-related injuries, two of which were caused by improperly lining switches. He should have used two hands in handling the switches as reflected in the requirements of GOI Section 8, paragraph 12.7 which reads, in part, as follows:
PURPOSE: To identify basic principles of body mechanics using muscles and body weight more efficiently while operating hand switches, in order to minimize the risk of injury.
…
HIGH SWITCH STAND
Grasp the lever with two hands and secure footing, lean backwards allowing your body weight to assist in pulling the handle across the top plate in a smooth motion.
It also does not appear disputed that upon his return to work from a previous absence Mr. Mousir had been refreshed on the contents of GOI Section 8 by his supervisor, a matter of days before the incident here under review.
The real thrust
of the Union’s case is that the discipline should be declared void ab initio because the grievor was
observed violating the GOI Section 8 provisions by Trainmaster Chris Mitchell
through the video camera system available in his office by which he is able to
observe the yard. It is not disputed that that is how Trainmaster Mitchell did
observe the grievor’s infractions. The Union stresses the Company’s
long-standing undertaking that the system of observation cameras installed in
the yard at
A threshold
question in the case at hand, one of considerable importance, is whether the
use made of the surveillance system by Trainmaster Mitchell was, in the
circumstances, improper, in the sense that it was uniquely for the purpose of
observing the grievor with a view to evaluating his performance and possibly
imposing discipline. It does not appear disputed by either party that such a
use of the surveillance camera system, a system essentially installed for the
purposes of ensuring security in the yard and monitoring the movement of trains
and blocks of cars, would render the evidence inadmissible. When close regard
is had to the evidence, the Arbitrator has some difficulty with the
As a matter of
first principle, it must be recognized that the incidental observation of
events on a security camera system does not, of itself, make those events
inadmissible at arbitration. That issue was touched upon in the award of
Arbitrator Taylor in Re Fraser
The issue before me concerns video surveillance;
however, it is not whether the Employer is entitled to install video
surveillance. The Employer already has a
comprehensive system of video surveillance, involving some 45 cameras patrolling
the entire site 24 hours a day, and there is no dispute that this system is
justified by the Employer’s security concerns and regulatory regime. Employees are aware the site is under 24-hour
video surveillance.
Accordingly, the issue before me is not whether the Employer is entitled
to place this worksite under video surveillance generally. The issue is whether the Employer was justified in using its video
surveillance system in the manner it did, with respect to the two instances
of recorded video in question: the March 25 video in which Mr. Buckle caused a
camera to follow the Grievor’s truck after he saw it entering the site with
garbage bags in the back, and the April 1 video, taken by a movable camera that
was fixed on the gas pumps due to concerns about the theft of gas.
Where
video surveillance is justified, it may record different types of misconduct
than the risk that justified the video surveillance in the first place: see
e.g. PIPEDA Case Summary No. 264 (February 19, 2004); X. v. Y. (Z Grievance),
supra. An employer is not required to
overlook video evidence of employee misconduct merely because it is captured on
a security video.
(emphasis
added)
The evidence
before the Arbitrator in the case at hand discloses that on the day in question,
In the Arbitrator’s view the facts reviewed above fall well within the principle enunciated by Arbitrator Taylor. The incidental observation of an unsafe practice is not inadmissible at arbitration merely because it was observed on a video screen which was in fact being used for another purpose. While the argument made by the Union would be compelling if it could be established that the trainmaster’s sole purpose in observing the location of the grievor’s work was to evaluate him for the purposes of possible discipline, that is clearly not what transpired in fact.
For the foregoing reasons I am satisfied that the Company did not violate the grievor’s privacy rights and that the evidence with respect to his unsafe handling of the switches is admissible. His conduct did make him liable to discipline, particularly has he had previously been disciplined for exercising undue care in the application of a hand brake, which was resulted in a personal injury to himself, as well as the fact that he had previously injured himself in the handling of switches and had recently been refreshed on the importance of the very rule which he was observed to be breaking. In light of the grievor’s relatively heavy disciplinary record, which does involve rules violations and includes a discharge which was commuted to a lengthy suspension, I am satisfied that the assessment of twenty demerits was appropriate and should not be disturbed. The grievance must therefore be dismissed.
ARBITRATOR